ISCR Case No. 16-01899.h1

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ADP Case No. 16-01899 ) Applicant for Public Trust Position )

For Government: Braden M. Murphy, Esq., Department Counsel For Applicant: Pro se

10/26/2017 ______________

______________

CREAN, THOMAS M., Administrative Judge:

Based on a review of the pleadings, eligibility for a public trust position is granted. Applicant presented sufficient credible information to mitigate financial trustworthiness concerns.

Statement of the Case

On November 3, 2015, Applicant submitted an Electronic Questionnaires for Investigations Processing (e-QIP) to obtain eligibility for a public trust position to work in support of a defense agency. (Item 4) Applicant was interviewed by an agent from the Office of Personnel Management on January 28, 2016. (Item 6, Personal Subject Interview (PSI)) After reviewing the results of the background investigation, the Department of Defense (DOD) could not make the affirmative findings required to grant Applicant access to sensitive information.

On August 29, 2016, DOD issued Applicant a Statement of Reasons (SOR) for financial trustworthiness concerns under Guideline F. DOD took the action under DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) implemented by DOD on September 1, 2006. The SOR in this case was issued under DoD 5200.2-R and t he September 1, 2006 AGs. DoD Manual 5200.02, Procedures for the DOD Personnel Security Program (PSP) became effective on April 3, 2017, and it incorporates and replaces DoD 5200.2- R. While this case was pending a decision, the Director of National Intelligence issued Security Executive Agent Directive 4, establishing in Appendix A the National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position (AG), which he made applicable to all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position. The new AGs supersede the September 1, 2006 AGs and are effective “for all covered individuals” on or after June 8, 2017. Accordingly, I have evaluated Applicant’s eligibility for access to sensitive information under DoD Manual 5200.02 and the new AGs. The outcome of my decision would have remained the same if adjudicated un der the former AGs.

Applicant received the SOR on September 13, 2016 (Item 2), and answered it on October 17, 2016. (Item 3). She admitted 16 and denied 3 of the 19 allegations of delinquent debt, and requested a decision on the record. Department Counsel submitted the Government’s written case on November 27, 2016. (Item 8). Applicant received a complete file of relevant material (FORM) on December 13, 2016, and was provided the opportunity to file objections and submit material to refute, extenuate, or mitigate the disqualifying conditions. Applicant provided additional information in response to the FORM that was received by DOD on January 3, 2017. On January 18, 2017, Department Counsel noted that he had no objection to consideration of the additional material. (Item 9) I was assigned the case on October 1, 2017.

Procedural Issues

Applicant was advised in the FORM that the summary of the PSI (Item 6) was not authenticated and could not be considered over her objection. She was further advised that she could make any corrections, additions, or deletions to the summary to make it clear and accurate, and could object to the admission of the summary as not authenticated by a Government witness. She was additionally advised that if no objection was raised to the summary, the Administrative Judge could determine that she waived any objection to the admissibility of the PSI summary. Applicant did not raise any objection to consideration of the PSI when she responded to the FORM. Since there is no objection by Applicant, I will consider information in the PSI in my decision.

After a thorough review of the pleadings, I make the following findings of fact. Applicant is a 54 year old high school graduate employed as a medical claims processor for a DOD contractor since January 1988. She has some technical school and college education. She married in May 1988, divorced in December 1999, and has two adult children. Applicant listed consumer and medical debts on her November 2015 e-QIP. She noted that the cause of her delinquent debts was too much spending and not enough income. She also stated that she was making payments on many of her debts. (Item 4, e-QIP, dated November 3, 2015) The SOR alleges and a credit report (Item 5, dated November 17, 2015; and Item 7, dated June 24, 2016) confirm the 19 delinquent debts for Applicant. The debts consist of a state tax debt (SOR 1.a), six medical debts (SOR 1.b, j, p, q, r, s), and 12 consumer debts or loans, including a student loan, in collection (SOR 1.c - k, l – o). The amount of the delinquent debt is approximately $37,941. Applicant admitted all of the debts except the consumer debts at SOR 1.m, 1.n, and 1.o. She denied these debts because the debts are not listed on her credit reports.

Applicant’s has been working for the same company for almost 30 years. Her payroll documents show that her hourly pay rate is $13.33, with a net biweekly pay of approximately $561. She is eligible and occasionally works overtime boosting her pay. (Response to the SOR, Payroll Documents) . In her response to the SOR, Applicant provided documents to establish that the tax lien listed at SOR 1.a has been resolved. Funds were deducted from her pay for four pay periods to pay the debt. (Item 3, Response to SOR, dated October 17, 2016, Payroll Documents) This debt has been resolved.

Applicant contacted the creditor for the student loan debt at SOR 1.d and the debt is in forbearance. It will be re-established at a later time. For now, the debt is resolved. (Response to SOR, Document D) The debt at SOR 1.s is paid in full and resolved. (Response to SOR, Document J)

Applicant made three monthly payments as agreed with the creditor on the loan at SOR 1.k. She realized that she could not afford to continue to make these payments as well as the agreed payments on her other debts. She contacted the creditor to modify the payments to what she could afford. The creditor refused to cooperate and modify the payments, so Applicant had to stop making payments to this creditor. Another creditor agreed to modify the payment arrangement with Applicant, so she is still making the payments on that debt.

Applicant contacted each of the identifiable creditors (SOR 1.b, 1.c, 1.e – 1.l, 1. p – 1.r) and established monthly payment plans for the remaining SOR debts of between $5 and $11. In her response to the SOR, Applicant provided receipts for the payment she made. (Response to SOR, Document B to Document K) In the response to the FORM, Applicant provided receipts for the payments she continued to make after the SOR response. (Item 9)

When evaluating an applicant’s suitability for a public trust position, the administrative judge must consider the disqualifying and mitigating conditions in the AG. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s over-arching adjudicative goal is a fair, impartial and common sense decision. According to AG ¶ 2(a), the entire process is a conscientious scrutiny of a number of variables known as the “whole-person concept.” The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision.

The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to [sensitive information] will be resolved in favor of the national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical and based on the evidence contained in the record. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture. Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The applicant has the ultimate burden of persuasion as to obtaining a favorable trustworthiness decision.

A person who seeks access to sensitive information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to sensitive information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to protect or safeguard sensitive information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of sensitive information.

Financial Considerations

There is a trustworthiness concern for a failure or inability to live within one's means, satisfy debts, and meet financial obligations, and may indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulation, raising questions about an individual's reliability, trustworthiness, and ability to protect sensitive information. An individual who is financially overextended is at risk of having to engage in illegal or otherwise questionable acts to generate funds (AG ¶ 18). Similarly, an individual who is financially irresponsible may also be irresponsible, unconcerned, or careless in their obligation to protect sensitive information. Behaving responsibly or irresponsibly in one aspect of life provides an indication of how a person may behave in other aspects of life.

A person’s relationship with her creditors is a private matter until evidence is uncovered demonstrating an inability or unwillingness to repay debts under agreed terms. Absent evidence of strong extenuating or mitigating circumstances, an applicant with a history of serious or recurring financial difficulties is in a situation of risk inconsistent with the holding of a position of trust. An applicant is not required to be debt free, but is required to manage her finances in such a way as to meet her financial obligations.

Adverse information in credit reports can normally meet the substantial evidence standard to establish financial delinquency. Applicant has significant unresolved medical and consumer debts. Her delinquent debts are established by credit reports and her admissions in the e-QIP and her response to the SOR. The debts pose a trustworthiness concern raising Financial Consideration Disqualifying Conditions under AG ¶ 19:

(a) inability to satisfy debts;

(b) unwillingness to satisfy debts regardless of the ability to do so; and

(c) a history of not meeting financial obligation.

I considered the following Financial Considerations Mitigating Conditions under AG ¶ 20:

(a) the behavior happened so long ago, was so infrequent, or occurred under such circumstances that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment;

(b) the conditions that resulted in the financial problems were largely beyond the p erson’s control (e.g., loss of employment, a business downturn, unexpected medical emergency, a death, divorce, or separation, clear victimization by predatory lending practices, or identity theft), and the individual acted r esponsibly under the circumstances;

(c) the individual has received or is receiving counseling for the problem from a legitimate and credible source, such as a non-profit credit counseling service, and there are clear indications that the problem is being resolved or is under control; and

(d) the individual initiated and is adhering to a good-faith effort to repay the overdue creditors or otherwise resolve debts.

The mitigating conditions at AG ¶ 20(a), (b), and (c) do not apply. Applicant incurred debt deliberately and freely. Applicant’s debts are numerous, recent, and not incurred under circumstances making recurrence unlikely. It is not an unusual circumstance beyond Applicant’s control to incur medical debts and consumer debts. The circumstances leading to the delinquent medical debts may have been beyond her control, however there is insufficient information in the case file to make that determination. Applicant presented no information that she received financial counseling. Applicant contacted each of her creditors and made arrangements where she could to make payments on her debts. She paid two debts in full. Applicant could not identify three of the debts, so no payments are made on those debts. She is making payments on the remaining debts. The payments may be small but she is making payments on also all of her debts. She continues to make the payments and provided evidence to establish her recent payments on the debts. This is evidence of a good-faith effort to pay delinquent debts. There is sufficient evidence to conclude that Applicant has a reasonable and adequate plan to resolve her financial problems and that she is adhering to the payment plans. There is an indication that Applicant’s financial problems will be resolved within a reasonable period.

The record contains corroborating or substantiating documentation of Applicant’s efforts to mitigate and resolve her financial problems. In requesting an administrative determination, Applicant chose to rely on the written record. She provided sufficient evidence to supplement the record with relevant and material facts regarding her circumstances, articulate her position, and mitigate the financial trustworthiness concerns. She provided adequate credible information regarding her past efforts to address her delinquent debts. She presented a sufficiently credible plan of how and when she planned to resolve her debts. Applicant’s reasonable payments on her debts and her responsible plan to pay her debts shows that she has acted reasonably and honestly with regard to her financial duties and obligations.

I find that she acted responsibly and made a good-faith effort to pay her debts. Her financial problems do not cast doubt on her current reliability, trustworthiness and good judgment. Applicant‘s information is sufficient to establish that she acted responsibly under the circumstances and that her finances are under control. In short, the file provided by Applicant contains sufficient evidence to determine that Applicant paid, arranged to pay, settled, compromised, or otherwise resolved her debts. Applicant has mitigated financial trustworthiness concerns.

Under the whole-person concept, the administrative judge must evaluate an applicant’s trustworthiness eligibility by considering the totality of the applicant’s conduct and all relevant circumstances. An administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d):

(1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence. Under AG ¶ 2(c), the ultimate determination of whether to grant a trustworthiness clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept.

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. Applicant is required to show that she has a credible and reasonable plan to resolve her financial problems and that she has taken significant action to implement that plan. Applicant established her reasonable plan to resolve her delinquent debts, shown that she has taken sufficient actions to implement the plan, and established that she is managing her financial obligations within her resources. Accordingly, she established that she can be trusted to manage sensitive information. Overall, the record evidence leaves me without questions and doubts pertaining to Applicant’s judgment, reliability, trustworthiness, and her eligibility and suitability for a position of trust. For all these reasons, Applicant’s eligibility for a public trust position is granted.

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline F: FOR APPLICANT

Subparagraphs 1.a – 1.s: For Applicant

In light of all of the circumstances presented by the record in this case, it is clearly consistent with national security to grant Applicant eligibility for a public trust position. Eligibility for access to sensitive information is granted.

_________________ THOMAS M. CREAN Administrative Judge